Borough of Pittston v. Hart

• Decision Date: 07 May 1879
• Parties: Borough of Pittston <I>versus</I> Hart.
• Court: Pennsylvania Supreme Court

Page 389

89 Pa. 389

Borough of Pittston versus Hart.

Supreme Court of Pennsylvania.

March 12, 1879.

May 7, 1879.

March 12th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

Error to the Court of Common Pleas of Luzerne county: Of July Term 1878, No. 70 C. S. Stark, for plaintiff in error.—The borough is not liable for accidents caused by horses that have broken away from or are not under the control of their driver: Titus v. Northbridge, 97 Mass. 258; Fogg v. Nahant, 98 Id. 578; Moulton v. Sanford, 51 Me. 127; Babson v. Rockport, 101 Mass. 93.

The fright and running of the horses were the proximate cause of the accident; the condition of the highway was the remote cause. The borough is not, therefore, liable: Penn. Railroad Co. v. Kerr, 12 P. F. Smith 353.

The jury were instructed that Hart could have controlled his horses and prevented the accident, if there had been a barrier on the wall. After such a charge, it only remained for the jury to find the amount of damages.

S. J. Strauss and H. W. Palmer, for defendants in error.— Travellers have a right to the whole width of a road as laid out, and if unlawful obstructions or pitfalls are allowed to remain on the margin, the road is not safe and convenient, as required by law: Stinson v. The City of Gardiner, 42 Me. 248; Johnson v. Whitefield, 18 Id. 286; Sherman & Redf. on Negligence, § 383; Bryant v. Biddeford, 39 Me. 194.

Where a rail or barrier is necessary for the proper security of travellers on the road, which, from its nature, would be otherwise unsafe, and the maintenance of which would have prevented the injury, it is negligence not to construct and properly maintain such barrier: Lower Macungie v. Merkhoffer, 21 P. F. Smith 286; Newlin Township v. Davis, 27 Id. 317; Scranton City v. Dean, 2 W. N. C. 467; Sherman & Redf. on Negligence, § 391; Alger v. Lowell, 3 Allen (Mass.) 402; Hey v. Philadelphia, 31 P. F. Smith 44; Wharton on Negligence, § 968.

Mr. Justice GORDON delivered the opinion of the court, May 7th 1879.

The verdict and evidence in this case establish the following facts: Pittston is a large borough, having a population of some eight or ten thousand. The street upon which this runaway happened, is the main one of the town, and whilst its general width is some sixty-six feet, it narrows to a width of thirty-six feet, including the sidewalk, at the place of the accident. On the west side, and at the point mentioned, some twelve feet lower than the street, is the Lehigh Valley Railroad, from the track of which up to a level with said street, is a perpendicular stone wall, built, no doubt, for the protection of the railroad. Notwithstanding the circumstances as above narrated made this a notoriously dangerous place, yet this part of the street was protected by neither fence, guard-wall or curb. On the 7th of May 1875, the plaintiff's two-horse team, in charge of his son, a boy of eighteen years of age, was quietly, and under full control of the driver, passing along the way above described, when the horses took fright from an approaching locomotive, which, as the boy said, by reason of the curve in the road, seemed to be coming down the street, and, in spite of the efforts of the driver, rushed across the road and over the wall above described. The result was one horse killed, the other hurt, the wagon and harness broken, and the boy badly injured.

Complaint is made that the court below suffered the jury to pass upon the question, whether...